Secret evidence challenge fails on immigration

By Chloe Smith » Immigration lawyers have failed with a High Court challenge to the use of secret evidence, but welcomed the judgment for providing ‘helpful clarification’. The Immigration Law Practitioners’ Association (ILPA) had claimed that rule 13(2), which applies in the firsttier tribunal, and the immigration and asylum chamber, was unfair. It also said the tribunal procedure committee did not have the statutory powers to create such a rule. The rule, adopted in 2014, permits the tribunal to prohibit the disclosure of information or documents to a person, including an appellant, if the disclosure was likely to cause them or someone else serious harm. It replaced a previous rule which said that tribunals ‘must not take account of any evidence that has not been available to all parties’. The association argued that this created closed material procedures, which would ‘enormously disadvantage’ the appellant. It also said that a provision which allows for disclosure to a representative does not make the rule any fairer. Mr Justice Blake said the committee did have the authority to make the rule, but that the rules do not give a mandate for secret trials. He said: ‘I cannot consider that rule 13(2) gives rise to a systematic or inherent lack of fairness, since I cannot envisage it will be used to make a closed substantive decision in the manner contended for by the claimant.’ Even if a judge does use the rule to order a secret trial, it is likely ‘to be a rare and unusual case, where the competing considerations would have to be examined on their individual facts’. Blake also recognised that ‘the very existence’ of the power to order a secret trial is ‘troubling’, suggesting it is an issue on which guidance could be provided. In his ruling, Blake also applied a narrower definition of when the rules could be implemented than originally outlined by the committee. Ronan Toal, trustee of ILPA, said: ‘Our challenge did not succeed, but the terms of the judgment take the sting out of that. While it is held that the rule can be applied in a lawful manner, this does not include it being applied in any of the ways we had contended were unlawful. The challenge has thus achieved a helpful clarification.